1995 (8) TMI 325 - SC - Indian Laws

Summary

Issues involved: Transfer of complaint by Chief Judicial Magistrate, Taking cognizance of the offence, Criminal breach of trust by a partner in a firm.

For the issue of transfer of complaint by Chief Judicial Magistrate:
The appellant contended that the Chief Judicial Magistrate erred in transferring the complaint without taking cognizance, as per s. 190 of the Code of Criminal Procedure. However, the Supreme Court held that the Magistrate takes cognizance of the offence, not the offender, as soon as judicial mind is applied to the offence. The power to take cognizance is not affected by the transfer process, and the Magistrate who receives the case can proceed with the matter even if the transfer was not in accordance with the law.

Regarding taking cognizance of the offence:
The Court explained that under s. 190 of the Code, any Magistrate may take cognizance of an offence upon receiving a complaint, police report, information from a person other than a police officer, or upon his own knowledge that the offence has been committed. The Court further clarified that the Chief Judicial Magistrate has the power to transfer cases and the Magistrate receiving the case on transfer can still take cognizance of the offence.

Concerning criminal breach of trust by a partner in a firm:
The appellant argued that as a partner in the complainant firm, he cannot be accused of criminal breach of trust against other partners. However, the Court stated that until the firm is dissolved and accounts settled, all partners have joint control over the firm's property and funds. The offence of criminal breach of trust is not related to the partnership property but to property specially entrusted under a contract. The Court found that the allegations in the complaint did not implicate the appellant in his capacity as a partner, but rather in relation to the specific contract with the accused firm.

In conclusion, the Supreme Court dismissed the appeal, stating that the allegations in the complaint were sufficient to proceed with the trial, and the determination of liability and defences should be addressed during the trial proceedings.